Posted
by
Soulskill
on Friday March 27, 2015 @03:41PM
from the you-may-not-lift-and-carry-objects-for-anyone-else dept.

Rick Zeman writes: Amazon, perhaps historically only second to Newegg in the IT nerdling's online shopping heart, has not only subjected their warehouse employees to appalling working conditions, but they're also making them sign a non-compete agreement for the privilege. Here's an excerpt from the agreement: "During employment and for 18 months after the Separation Date, Employee will not, directly or indirectly, whether on Employee's own behalf or on behalf of any other entity (for example, as an employee, agent, partner, or consultant), engage in or support the development, manufacture, marketing, or sale of any product or service that competes or is intended to compete with any product or service sold, offered, or otherwise provided by Amazon (or intended to be sold, offered, or otherwise provided by Amazon in the future)."

Here we have a very effective law that put a complete stop to the non-compete bullshit: any company that wants a non-compete contract will have to pay half salary for the entire period where said non-compete contract is valid.

So if you stop working somewhere, they have to keep paying you half salary, if they really think that non-compete contract is necessary. They almost never do.

See the part that says "any product or service". That's entirely too broad. Have you seen the breadth of things Amazon sells?
This could probably only be enforced if someone was taking proprietary information about how Amazon does things and improves the processes at a competitor.

Fair enough, but a warehouse worker isn't going to easily find a job in a place where they store something that Amazon doesn't sell. They aren't going to have a lot of choice but to ignore the non-compete or go on welfare or something.

I don't see why you would put a non-compete on a warehouse worker and expect to justify that as protecting your trade secrets.

It's not really the ex-employer keeping track that you have to worry about. Almost all prospective employers will call for a reference and then they know you are looking into a banned job. But the most troublesome for you would be friends and people you used to work with running into you on the street or something and you letting it slip that you are working somewhere specific. They then either out of amazement or stupidity, end up telling someone else at work and eventually it become common enough knowledge that the management hears about it.

It's happened to me before. I've wondered out loud about how some former coworker was doing and someone ends up telling me "just fine, they are working at XYZ now" not realizing they should have used a bit more discretion. Before I knew it, I was in the office being grilled by the boss and almost lost my job by telling them I was talking about someone from school not work when they heard the entire conversation. Thankfully, it turns out in my situation that the former employee already cleared the job with higher up management so the only one in any trouble was me. I soon found another job.

They can call all they want but most companies do not provide references beyond , "yes, he worked here from a to b". Many do not provide any information at all as there is no upside for them doing so and plenty of possible downside.

Remember this isn't a criminal offense. Most warehouse workers are 'judgement proof', in that they don't have the assets to pay anything. The court isn't going to say 'you have to quit your job' because it has financial interest in NOT paying for their welfware because they can't work at what they're skilled at due to the non-compete.

Amazon would pay more than they could recover pretty much every day the court trial went on. Also, there might actually be enough push-back if they tried to change laws.

Personally, I'd like to see a law of 'sure, write up whatever non-competes you want. However, it means that the the employee is still your employee during the non-compete period. Which means you still have to pay them their salary and benefits'. Don't want them working for the competitor for 12 months? You gotta pay them to sit on their ass for 12 months.

Finally, it sounds like they stuck the non-compete into their boilerplate employment documents. It's not intentionally targeting warehouse people, though I suppose that with the increasing amounts of robotics in them, it might be deliberate, so said workers don't go describing how the robots work.

Amazon would pay more than they could recover pretty much every day the court trial went on. Also, there might actually be enough push-back if they tried to change laws.

So what? Corporations spend tons of money dragging on court cases to attempt to bleed dry the people suing them. Insurance companies are notorious for it. Plus, Amazon has billions in money they can bring to bear.

it might be deliberate, so said workers don't go describing how the robots work.

Then they would only have them sign a non-disclosure agreement, which is not the same as a non-compete, if that were really the motive.

While I'm sure this is something to be considered, I'm not sure it is entirely possible. Some states will have restrictions on what can actually be covered by a non compete agreement. In Washington state for instance, a non compete is limited to customer information and contacts and something called good will (however that is defined) and limited to what is reasonably necessary.

This is kind of confusing as each state seems to be different to some respect. Some states also have a red line policy where if something is overly broad or not within the law, the entire agreement is tossed out while others will use a blue line approach and only strike out what is in conflict to make the NCA enforceable. Yet there is another process called reformation in which the courts would actually rework the Non-compete in order to make it enforceable(eg, striking out the entire state as overly broad and inserting a metropolitan area or radius of distance from the locations of the employer they determine to be reasonably enforceable)

In theory, yes. If they are in a jurisdiction that allows non-competes, and the new employer knowingly induces the employee to break the non-compete terms, then Amazon could claim tortious interference. But hard to see them using that against low-level workers - they are easy to replace, and the courts will probably deem the non-compete unconscionable. If Amazon fights, and loses, that may reduce their ability to threaten higher-level employees with those terms.

In many states, yes. It would be a tort. Intentional interference with a contractual relation. However, in the states that recognize this claim, the competitor would generally have to know about the non-compete. Additionally, Amazon would have to prove harm, which might be hard to do in the case of this type of worker.

Yeah and that class action will cost Amazon a fraction of a percent of their yearly revenue while at the same time having scared plenty of their workers from trying to leave and work for anyone else for years while the court battle drags on.

Yeah and that class action will cost Amazon a fraction of a percent of their yearly revenue while at the same time having scared plenty of their workers from trying to leave and work for anyone else for years while the court battle drags on.

If a contract has something like this in it, I'm guessing there's also language that mandates arbitration (vs lawsuit) and forbids class actions. I can't play a modern video game from a major publisher without a clause that mandates arbitration.

Just one lawyer needs to see the "class action" possibilities; those won't cost the workers

Yup. All the lawyer has to do is find all zero of the warehouse workers that were actually sued or damaged in any way.

I realize that we are all supposed to be outraged, and equate this to the blood of the workers being used to lubricate the machinery of capitalism. But this is just some standard legal boilerplate, that nobody noticed before, because it has no actual real world consequences.

Except Amazon hasn't actually threatened anyone. No rational person would believe, in light of complete absence of evidence to the contrary, that the intent of this clause is to prevent someone from working as a cashier at Walmart. Preemptively suing Amazon because there is an infinitesimal chance that they might sue you, is not going to get very far. The judge should throw the case out and order you to reimburse Amazon for their legal expense. We have enough frivolous nonsense in our courts.

Not in any legal sense. Just because you imagine it to be a threat because of rabid foam-at-the-mouth manufactured outrage, doesn't mean it really is. If a clause in a contract is unenforceable, it is not illegal to put it in the contract, it just can't be enforced. Amazon has made NO effort to enforce this clause against any warehouse workers, so there is no actionable tort against them.

There are real problems in the world to get outraged about. You should refocus on something less ridiculous.

You assume I'm outraged. I do understand the need for non-compete, non-disclosure and intellectual property ownership transfer clauses in contracts; in the right place and circumstances. I even understand the difference between enforceable and unenforceable contracts.

I'm not outraged.

I think it is silly and expect it to be unenforceable, and I doubt they have any intent of enforcing it. That doesn't mean it isn't a threat. There is no real contract without some threat of enforcement, and that's the key word: threat.

Whether Amazon takes action or not, it is a threat which discourages specific actions. It doesn't matter whether it is actively enforced or not. That's the real danger, the threat discourages specific actions. That's a threat, even if they choose not to follow through on it.

There is a place for those types of clauses. This is obviously not the place and it is good that people are bothered by it. I may not be particularly bothered, certainly not outraged, but I'm glad that unreasonable contracts get negative attention.

In any case, you would need Amazon to actually enforce it.While they do have more money for legal fees, they would risk a big PR issue if they tried to prevent some guy from working at Walmart after quitting Amazon. Also, the first guy with such a problem wouldn't have a lot of trouble finding someone to help them with legal fees, if only for the publicity.

This is probably just a scare tactic, to discourage people from leaving them, it is unethical, but not really enforceable.

In any case, you would need Amazon to actually enforce it.
While they do have more money for legal fees, they would risk a big PR issue if they tried to prevent some guy from working at Walmart after quitting Amazon. Also, the first guy with such a problem wouldn't have a lot of trouble finding someone to help them with legal fees, if only for the publicity.

This is probably just a scare tactic, to discourage people from leaving them, it is unethical, but not really enforceable.

More likely, it's a case of megalomania of some middle manager somewhere. Some guy read the article about Facebook "stealing" methods for data centers and thinks the stuff "they invented" in the company is intellectual property worth billions and tries to "protect his ideas."

The non-competes I have experience with were always some big ego douchebag somewhere, not a real business need. It might be different in some industries, but random software consulting companies just don't need it. Yeah, you can be pr

Signed contracts are deemed unenforceable all the time. It's called an illegal agreement [wikipedia.org] and there is hundreds of years of common law precedent around it. You're an idiot.

Exactly. When I left a job I had my lawyer review the non-compete. His response: "Ignore it. It's unenforceable and the chances of them trying to stop you in court are nil." He said that the law is constantly changing and what is enforceable today may not be tomorrow, and unless you are senior enough or worked on a very sensitive area it's not worth the trouble to sue you; and if you were in those situations you should have a very specific non-compete, with compensation for the time you can't compete to ensure it is enforceable. The general rule is if they try to prevent you from working in an area where you have experience it will be unenforceable unless they pay you to not compete and even then it has to be for a reasonable period. Of course, IANAL and YMMV depending on jurisdiction. HAND

There are lots of clauses placed into contracts that are not legally binding under current law. Some of those clauses are put in because the parties drafting the contract aren't necessarily aware that they're not legal, and other clauses are there so that if the law is changed, the clause might be able to come into effect.

An example, in my state, a real estate lender cannot seek compensation from the mortgagee-seller if a short-sale does not bring as much revenue as the mortgagee owes. Despite this, most short-sale contracts state that the bank may go after the seller for the seven years that debts may be collected in. Other states do not have laws preventing this, so if the seller moves out-of-state the bank might try to enforce against them, or if the laws in the state change then the bank may attempt to enforce.

As for the nature of illegal conditions in a contract, that's why contracts usually have clauses in them that state that if any part of the contract is deemed unenforceable, the rest of the contract remains in-effect.

As for the nature of illegal conditions in a contract, that's why contracts usually have clauses in them that state that if any part of the contract is deemed unenforceable, the rest of the contract remains in-effect.

Which itself is not always a legal condition. There are plenty of instances were the entire contract is thrown out due to the presence of illegal clauses.

The absolute worst part of this is that it effectively covers any job involved in any way with "any product or service sold, offered, or otherwise provided by Amazon"...which, since Amazon does a little of everything means that it effectively says "you agree not to work anywhere for 18 months after you quit or are fired."

Sure, they know it's likely not enforceable in some states, but many of the workers will likely have to spend more money than they have in net worth to fight it. Amazon has more than enough money to make the lives of these workers miserable in court.

Someone who has signed such a contract would be forced to stay and work in same shitty job with same shitty pay forever if he wants to put food on the table. He has in fact been removed from the competitive part of the workforce unless he is retrained to do something completely different such as teacher or nurse,

You are correct, at least as far as the Supreme Court of Canada and Superior Court of Ontario are concerned. They have ruled time and time again that overreaching non-compete agreements sign away unalienable rights and are thus invalid.

Noncompetes which are limited in scope on the other hand are routinely upheld.

Revenues aren't profits. All that money needs to go back into the company to keep it afloat. On $89 billion dollar revenues, expenditures exceeded that figure; they lost $240 million last fiscal year. Million dollar fines would definitely hurt Amazon.

In Germany, a non-compete clause is only enforceable if compensated, since that goes against the the constitutional right to work where you want. The company has to pay at least 50% of your salary during the non-compete period. That means even if you did sign a non-compete, it's not valid unless the old company is compensating you. Effectively, this forces companies to balance the need for a non-compete with the cost. Effectively, this means only high up people have the clauses in it.

F$*# that, use California rules. In California, a company that insists on having an invalid non-compete agreement signed by their workers under threat of firing may be liable for wrongful termination in violation of public policy.

Which non-competes are unenforceable/therefore illegal? Basically all of them.

The only time a non-compete agreement is valid (regardless of consideration) is when the person signing away their rights does it as part of a sale of a business and the goodwill of that business. So, you can't create the next WhateverApp, sell it for $X-leventy billion, write a deal that says you will not compete with the business you just sold, and declare that non-compete invalid under California law.

But basically every other non-compete is automatically invalid (even when it is for compensation). If you are paid under the terms of a non-compete for your cooperation, and you break the terms of the deal, you will still be entitled to keep what you have received (that deal was not legally binding) and the company's only recourse is to stop sending the payments. They cannot sue you for violation of contract terms.

I don't know, I like the fact that the non-compete is only valid while the payments are ongoing, but I think it's still going to be a problem for a lot of people if they are forced to sign a paper that says they can be terminated and barred from working for the competition in exchange for 50% of their salary ongoing.

If I was a specialist, I would consider the threat of losing 50% of my salary to be very tough to cope with, but losing 100% even harder. California rules recognize that when the "consideration" is "you get/keep the job" that's pretty much the definition of duress, it's Hobson's choice, it's not really a choice at all. You sign the paper because you want to keep your job, or you need to have the job.

You are free to reject the non-compete, as an added bonus you get to lose your job and you may not be entitled to unemployment or any severance package for your refusal to cooperate.

I have never been a business owner, and it's good to get different perspectives. I can see how it would be attractive to get 50% of what you're paid for not working anymore. As a knowledge worker I have a hard time imagining a scenario where it's worthwhile for me to give up on making money at what I've been training to do since high school for any length of time. Maybe I am imagining the scope of a non-compete to be larger than it is in fact.

Maybe I would see it differently if 50% of my salary was a bigger number;)

In Belgium when you have a non-compete, you will get what is quoted in the contract. (Unless you start working for the competition)It also depends on the job and will have a limited reasonable duration.

I had one, but unfortunately they annulled it when they fired me.(1) Otherwise I would have been given a year extra payment while working at a company in the same job, but not in the same field.

I know somebody who started working for the competition and in the identical job, but they just named the job differently. He never asked the money and the company never followed up on it.

I know of somebody else who was forced to leave their new job, but got the money. The law will side with the worker most of the time and unless there is a clear abuse of what is reasonable, then nobody actualy follows up on it.

If you get fired, most of the time it will be annulled and if people leave, they just go to somebody who is not the competitor.

All that said, if you are anything like a blue collor worker or an office serf, no way they could stick that to you. I sign them gladly and hope they forget when they fire me when they need to cut back.

(1)They gave me 5.5 months pay instead of the legal required 3, so that was nice.

Similar rules in all of the US. You must be compensated for agreeing to limit your future work options. The amount is left up to the two parties. But the non-compete can't be a condition of employment. Signing a non-complete when you get the job is generally considered unenforceable. Which is why they try get you to sign it again when you leave and are handing you severance pay. Then they can say they did compensate you and you agreed.

In New York, non-compete may be valid if it is limited in scope or duration, regardless of consideration offered. In other words, you can be barred from competition (in your specific industry, for a reasonable specified length of time as determined by the courts) with no specific compensation if that's the terms of the non-compete agreement. Those agreements can be mandatory as a condition of employment.

Right now - with minimal punitive effects - the system encourages people to over-reach when writing such contracts, in the hopes of intimidating people from using their legal rights.

This effect, rather than a few rare extreme punitive tort cases (i.e. suing because the coffee is too hot), is why we get said contracts and why we have to sign away our rights whenever we decided to go say white water rafting.

In Belgium I followed a cource on hunman resource law. What they said to me (as employer, not as employee) was that you can basically write everything in a contract, but that does not make it legal. Not only could it mean that a part of the contract can be trown out, but the whole contract can be trown out AND the law will be even more inclined to side with whatever the emplyer tells.

On the other hand, if the people do not complain within a year after termination, you are good.

As I understand it, this is saying that warehouse workers (i.e. the people who do physical labor like moving products from point A to point B, or pack shipments) can't help to develop similar systems for their competitors using what they know about Amazon's practices. This does not seem to stop them from doing manual labor elsewhere.

This doesn't seem all that concerning to me. AFAIK this is the exact kind of thing non-competes are intended for. Perhaps 18 months is a little long. I'd guess 6-12 months is mo

You're confusing non-dislosure agreements with non-competes. A non-disclosure agreement covers not using proprietary knowledge of one company for the benefit of a future employer. A non-compete is basically trying to ban you from getting gainful employment in the very field in which you have work experience.

As I understand it, this is saying that warehouse workers (i.e. the people who do physical labor like moving products from point A to point B, or pack shipments) can't help to develop similar systems for their competitors using what they know about Amazon's practices. This does not seem to stop them from doing manual labor elsewhere.

This doesn't seem all that concerning to me. AFAIK this is the exact kind of thing non-competes are intended for. Perhaps 18 months is a little long. I'd guess 6-12 months is more reasonable.

But other than that, this doesn't seem all that bad.

That was my reading too -- they aren't trying to prevent an Amazon warehouse worker from working in a Walmart stock room (even though Walmart and Amazon may be selling the same consumer goods), but are trying to prevent a warehouse worker becoming a Google consultant to help design Google's warehouse operations.

Sounds like there's some overlap with an NDA but Amazon is probably trying to cover all of their bases to give themselves more ammo in a lawsuit.

Unfortunately not enough people go union. So many people have bought into the corporate bs about unions (though some of it is the fault of unions and well-deserved) that they actively work against their own interests. Combined with enormous amounts of pro-employer/pro-corporation statutory law and case law basically has created a huge imbalance when it comes to workers' rights.

That kind of warehouse workers are replaceable in a second and Amazon knows this. If they have to or want to fire one there's a sheaf of a hundred resumes equally qualified to trudge about scanning items and bringing them to the packing area. It's absolute bottom-of-the-barrel stuff. This is the only reason most amazon warehouses aren't replaced by robots now: humans at slave wages cost less.

What I found most disturbing about the linked article on working conditions in the Amazon warehouses is that they were trying to get the temps to work harder with vague statements about full time employment. I work as a temp, and every single temp agency in existence has a provision in the contract they have with the employers that the employers will not hire the temp for a period (usually six months) after their last paycheck. I'm smart enough to know that anyone who promises me a full time job is lying, but to try and pull the wool over the eyes of these warehouse workers is unforgivable.

My wife's employer is an apartment management company. Their HR director copied all the company policies and procedures manuals, then bailed to start a competing firm. A few months later, the company demanded that all employees sign non-competes as condition of continued employment.

Because she's worked in the company for nearly 15 years, it's unlikely she would find comparable employment in an unrelated field should she decide to leave. We sought the advice of an attorney who offered some great advice. First he said the company would need to undertake legal measures to enforce the non-compete. Theirs did not provide for any penalty against my wife, so even if they were to win in court, there's no consequences, other than her company is out their legal costs.

Secondly, a non-compete cannot be one-sided, or courts will throw them out. People have a right to work that cannot be forfeited or signed away. Her non-compete was overly broad - both in geography and scope. The language disallowed employees to work in any field the company did business in within the state of Nevada or within 100 miles of any site where they operated. Keep in mind they also demanded the maintenance and landscape workers to sign these non-competes. Our attorney counseled us that those provisions alone would likely nullify the entire document in court. It's not reasonable to tell the guy who mows your lawn that he needs to move across the country if he ever wants to work in yard care again.

I suspect Amazon's warehouse workers would fall under the same protections. Nothing about putting product in a cardboard box is proprietary. This is just some idiot middle manager trying to intimidate employees in an effort to reduce turnover.

Amazon is to remove a ''non-compete'' clause from its employment contracts for US workers paid by the hour after criticism that it is unreasonable to prevent such employees from finding other work.
A company spokeswoman confirmed to the Guardian that the clause would be cut.
''That clause hasn't been applied to hourly associates, and we're removing it,' 'she said.The company would not disclose the breakdown of its staff by geography or hourly pay and salary. No UK employment contracts for hourly workers contained such non-compete clauses.

Amazon further required laid-off employees to reaffirm their non-compete contracts in order to receive severance, reported the Verge.

Here in the EU, if there are terms in an employment contract that effectively mean a non-compete for X length of time after leaving that employment, they are completely unenforceable once the employment contract is terminated. The key terms are "contract" and "terminated". The contract no longer exists legally once the employment is terminated.

If a company wants non-compete methods, then they have to request that the newly-ex-employee sign a new contract to not compete with the previous employer's competitors, and in every case that I have heard of, the monetary terms for that non-compete had to be very very generous in order for the newly available employee to not work for the next 6 to 18 months in the business. Some in this situation went on training courses to stay current, others branched out into differing areas of work, all while getting handsomely paid not to work for the competitor.

Amazon have their head up their ass regarding the treatment of their employees for a long time in the US, and it'll come back to bite them. At least in the EU the employee protection legislation prevent such entities from taking that level of advantage of their employees. I'll be glad if/when karma comes back to burn Bezos and gang over their unethical actions and general mistreatment of their staff.

"As a current employee of Amazon and looking for a different work, with reference to Non-Compete document# xxx I have signed, I am requesting a comprehensive list of jobs and domains which I'm forbidden to participate in. Currently my job as a janitor of warehouse X leaves me with very little to no knowledge of what products or services are in development, manufacture, marketing, sale , offered or otherwise provided by Amazonof any product or service that competes or is intended to compete with any product or service sold, offered, or otherwise provided by Amazon, and especially the ones it intends any of the above in the future. Since I must know if I'm allowed to perform any of jobs there are openings for, I require this information, so that I don't violate my Non-Compete."

"Please deliver the printed list to my house at [...], as I'm unable to rent a truck to take it home from work."

Not everybody is always in a position to choose from a range of different employers when looking for a job to feed their family. For some people, Amazon may the only reasonable option available at the time.

And even if they did have a wide range of choices these clauses are still bullshit. It should never be seen as reasonable, outside of some pretty extreme circumstances, that any worker be forced to sign away any ability to get gainful employment in the field they have experience in for the 'privilege' of a job.

Because some of us actually have empathy and don't agree with ridiculous contracts that bar people from being able to find gainful employment because they happen to leave or get fired from Amazon? Many of the people who will sign this are likely desperate for a job and Amazon is taking advantage of that by adding in scary clauses into their employment contract that provides the worker ZERO BENEFIT.

Just because people choose to work in a place, doesn't mean the company gets to trample its worker's rights. Besides, it might not have been much of a choice. Suppose someone loses their job and is out of work for awhile. Money gets tight and they need to feed his family. He is offered a job at Amazon and no other prospects are forthcoming. Should he decline the job on principal/due to the non-compete contract clause, thus putting his family in deeper financial peril? Or should he accept the job prote

Very few people are ever in a position to force you to do anything, and yet you may still be in no position but to accept their propositions. For example, perhaps you need to eat and keep a roof over your head and there aren't a lot of other opportunities in your area or fitting your qualifications. We have laws to protect people in these situations. Telling someone that they can't exercise their skillset and background for 18 months after they leave a position without otherwise providing due compensation i